A Ukrainian national applied for temporary protection in Germany on 19 July 2022. Two months later, she submitted a similar application in the Czech Republic. That second application was rejected by the Ministry of the Interior as inadmissible on the ground that she had applied for or obtained temporary protection in another Member State. The applicant appealed the rejection before the Městský soud v Praze (Prague City Court, Czech Republic), which annulled the decision of the Ministry. It noted that although the applicant had applied for protection in Germany, it had not been granted to her, and the Temporary Protection Directive 2001/55 (hereinafter, TPD) did not foresee a rejection on the ground that an application for temporary protection had previously been submitted in another Member State. In concluding this, the court noted that the grounds for excluding a person from temporary protection are exhaustively set out in Article 28 of the TPD, resulting in national legislation being in breach of EU law. Subsequently, the Ministry of Interior lodged an appeal to the Czech Nejvyšší správní soud (Supreme Administrative Court), which decided to stay the proceedings and refer two questions to the CJEU:
- First, whether Article 8 of the TPD precludes national legislation which foresees the inadmissibility of an application for a residence permit based on temporary protection if the foreign national has applied or been granted such a residence permit in another Member State.
- Second, whether a person enjoying temporary protection has the right to an effective remedy before a tribunal under Article 47 of the EU Charter against the failure of a Member State to grant a residence permit within the meaning of Article 8(1) of the TPD.
The CJEU clarified that Article 8(1) of the TPD must be interpreted as precluding national legislation which considers inadmissible the application for a residence permit based on temporary protection solely because the applicant has already submitted an application in a first member state. The CJEU stated that the second Member State must examine the merits of the application submitted to it. In doing so, the court noted, the authorities of the Member State concerned might verify whether the person concerned falls within the categories of persons referred to in Article 2 of Implementing Decision 2022/382, and if he or she has already obtained a residence permit in another Member State.
The court also referred to recital 16 of the Implementing Decision 2022/382 which provides for the right of Ukrainian nationals to move freely within EU after having been admitted for a 90 days period and to choose the Member State where they intend to enjoy temporary protection.
On the second question, the CJEU held that under Article 47 of the EU Charter, a decision to reject as inadmissible an application for a residence permit under Article 8(1) of the TPD may be the subject of an effective remedy.
The court recalled that the recognition of the right to an effective remedy provided for in Article 47 of the EU Charter presupposes that the person invoking that right is relying on rights or freedoms guaranteed by EU law. The CJEU noted that under Article 8(1) of the TPD, Member States are required to adopt the necessary measures to provide persons described in the TPD residence permits for the entire duration of that protection and to issue them, for that purpose, with documents or other equivalent evidence. Accordingly, the right of those persons to a residence permit and to obtain evidence in that regard is a right guaranteed by the legal order of the European Union.